Reforming the Filibuster

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

3 Responses

“…it is impractical to end the two-track system because of senators’ aversion to the unpleasant schedule that is created by round-the-clock speeches,…”

Prior to Mike Mansfield’s two-track system, the senators’ aversion to the unpleasantness of round-the-clock speeches was the reason the filibuster used to be a weapon fired only for first-magnitude issues. The two-track system has proved to be the death of serious debate in the Senate, and I suspect it could be killed by bipartisan agreement.

There is something I don’t understand, though, about the politics of “caving in to the threat of filibuster.” My theory for revoking the two-track system is that if the minority had to actually get up and speak ad infinitum to block a relatively trivial piece of legislation, thereby gridlocking the legislative process, they would be reluctant to do so because it would expose them as arrogant obstructionists.

If that’s true, however, then the Majority Leader has it in his power to expose them as such, simply by not “two-tracking” any other pending legislation. Why don’t Majority Leaders do that?

Reading history over these years, allusions to assumed “better days” repeatedly is taken by me with a grain of salt.

The “death of serious debate in the Senate” was present before the “two track system,” at least as far as the fact that various subjects were basically off the table.

There is so much to do these days, actually spending even a week of legislative business to force a “real filibuster,” would be risky, putting aside that various members of the majority party ALSO like the power the filibuster brings them. So, “minority” doesn’t mean “minority party.”

But, the minority party ALREADY gridlock the process for relatively trivial reasons (if for a bigger end as a whole, such as making the courts more conservative over the long term) now in various ways. Where’s the big exposure that is hurting them?